42 F. 288 -

42 F1d 288

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Case Text

288<;

FEDEML . JlEPORTER,

vol. 42.

cited by him in support of the text. It was held by the court in the . case of Bank v. Goulcr. 5 Hill, 315, that, the affidavit being a necessary part of the machinery for forming a limited partnership, it was properly given in evidence, along with the .certificate and other papers, for the purpose of showing that the requirements of the statute had been complied with, and that, Where the paperJ are regular and sufficient in form, they make out a prima facie case for the defendant that the partnership the .burden upon the plaintiffs of showing that something was wrong before they could the defendant as a g¢ne,ralpllrtner. IftJ:ieaffidavit is sufficient proofin the first instance of the fact of payment, it would seem to follow that-the allegation of the maJPrn;&()f such affidavit is sufficient; for it cannot be that it is necessary to altege a stronger case than it is necessary to prove. The demurrer is overruled. A similar order will be entered in the case of Connor v. W:Vatt and NewhaU, which was submitted at the same time as the present case, and in which the same point arises.

A telegraph operator employed by a railroad company to give information in regard to the location of trains on the road, and to communicate to the operators on the trains instructions for running them, received by him from the train dispatcher, is a fellow-servant of the firemen on such trains.

.AtLaw. Motion by defendant to instruct the jury to find a. verdict for defendant. TheJRcts in this case are as follows: On November 3,1886, at 11:15 P. M ·· there was a collision between an east and a west bound freight train orthe defendant, at Tower City,Dak., seven-eighths of a mile east of Tower City station, whereby the plllintiff, a fireman on the west-bound train, was injured, and ·this action is brought recover damages for such injuries. The two trains at the time of the collision, and for some time prior thereto, had been .running on telegraphic orders emanating from the train. dispatcher at Jamestown, to the local operator at Tower City , which method of running said trains had become necessary from the fact that the east-bound train was a special, and was also continually losing time, and the west-bound train was some hours behind time. The stations along defendant's line, as far as are material in this case, are, comthe east, Casselton, Buffalo, Tower City, Valley City, and Jamestown. When the train was at Valley City, the westbound "train was at Casselton, and the train dispatcher at Jamestown, while· these trains were at these respective stations, telegraphed orders, which were duly delivered to the of each train, to meet each

II'KAIG V.NORTliERN PAC. R. 00.

289

other at Buffalo, and after the delivery of this order to the engineer and conductor of the respective trains each train started on its journey. The east-hound train, however,lost so much time in getting up a heavy grade just east of Valley City that it became necessary to change the meeting point, and place it further west than Buffalo. The orders of the company regulating the movements of trains by telegraphic orders are as follows:
"The general rule to be observed in moving freight trains against each other is to obtain the understanding of the conductor and engineer of the train having the right to the road before running any train against them. If, however, the conditions are favorable for holding freight trains through the operator. and serious delays can be avoided thereby, dispatcher can depend upon the signature of the operator, green SIgnals, and torpedoes, to hold such ing train for orders at any telegraph station other than the meeting point, and, in extreme cases. trains can be held for each other at the meeting points by putting out red signals and torpedoes 1,000 feet in both directions from the telegraph office in addition to the green signal and torpedoes at the telegraph office. When there is no telegraph office at the meeting point. the red signal and torpedoes must be used for holding at the telegraph office distant from the meeting point."

The train dispatcher at Jamestown telegraphed the operator at Tower City to put out the signals required by the rules to flag and hold the east-bound train for orders, and shortly afterwards said operator telegraphed back to the train dispatcher that the signals were out. The truin dispatcher then issued the order changing the meeting place of the trains from Buffalo to Tower City. This order was delivered to the conductor and engineer of the plaintiff's train when it reached Buffalo, and thereupon that train proceeded from Buffalo, expecting to meet the eastbound train at Tower City. Orders were also sent to the operator at Tower City to be delivered to the conductor and engineer of the easthound train when it reached that point. The east-bound train, however, ran through Tower City without stopping, and collided with the plaintifPs train, seven-eighths of a mile east of Tower City. The negligence charged is that the telegraph operator at Tower City failed to and neglected to put out the signals, as required by the rules of the company, in order to stop said east-bound train, and that the company therefore is liable. a. D. « T. D. O'Brien, for plaintiff. J. a. BuUitt, Jr., for defendant.
NELSON, J. In this case I am constrained, from my view of the law, to say that the motion made by defendant's counsel must be granted. To entitle the plaintiff to recover under any circumstances, it is necessary for him to show that the injury which he sustained was in consequence of the negligence of the defendant. The collision was due to the negligence of somebody. If it was the negligence of the engineer of the east-bound train, owing to the fact that he was running too fast, so that he could not stop, or he failed to see any signals if any were put,out, plaintiff cannot recover, because he was a fellow-servant and co-employe v.42F.no.5-19